ACLU History: Refugee Protection: The Right to Apply for Asylum

On April 1, 1997, the United States implemented an 'expedited removal' system that operated in virtually complete secrecy and erected an unprecedented barrier to the right to apply for asylum. Fleeing refugees could be denied entry by a low-level Immigration and Naturalization Service (INS) inspector as they arrived in the United States and were not even allowed the chance to apply for asylum unless the inspector believed  based on an on-the-spot determination  that they had a legitimate fear of returning to their country. Granting instant determination authority to officials with little or no training to make these often life or death decisions for the individuals involved was, not surprisingly, disastrous. Problems related to interpretation, fear, humiliation, confusion, and ignorance of American law, all conspired to render this process discriminatory at best and meaningless at worst.

The ACLU  leading a coalition of civil rights organizations, refugee groups, and pro bono law firms  organized a legal challenge to the expedited removal system. The coalition was able to document numerous deficiencies and abuses, despite the INS having denied refugee advocates access to the inspection process. In one notable case, an Albanian refugee was expelled from the United States though she originally escaped Albania after having been gang-raped in retaliation for her husband's political activity. The ACLU negotiated with the INS for her re-entry, but only after extensive media coverage did INS officials allow the refugee to return and she was subsequently granted asylum.

Systemic challenges to the expedited removal system by the ACLU and its coalition partners were restricted by statute and rejected by the courts. The ACLU responded with several new strategies including a Freedom of Information Act (FOIA) lawsuit to compel disclosure of government documents exposing the INS implementation of the expedited removal process. In April 2000, the government agreed to settle the case and to produce information kept secret since the expedited removal system had been implemented exactly three years prior. The data and documents were made available to groups and organizations nationwide involved with documenting abuses in the system and seeking to challenge the law.

The ACLU also began initiating individual lawsuits on behalf of persons whose rights were violated by the system. For example, the case of In re: Rich involved a refugee from West Africa who fled to the United States after family members were killed by police. He was subjected to the expedited removal process upon arrival at the airport and deported immediately without even the minimal procedural protections required by law. He was later able to return to the U.S. and the ACLU represented him at an immigration hearing in which the judge granted his claim under the Convention Against Torture (CAT) treaty.